Opinion
DOCKET NO. A-2437-13T2 DOCKET NO. A-2438-13T2
02-19-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.H. AND R.H., Defendant-Appellants. IN THE MATTER OF C.M., R.H. and T.H., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant J.H. (Dana Citron, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant R.H. (John A. Salois, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cameryn J. Hinton, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-137-13. Joseph E. Krakora, Public Defender, attorney for appellant J.H. (Dana Citron, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant R.H. (John A. Salois, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cameryn J. Hinton, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Following a fact-finding hearing, the Family Part entered an order reflecting the judge's determination that defendants R.H. (Ray) and J.H. (Jane) had "neglected" their children, C.M. (Carla), R.H. and T.H, ages five, four and one, respectively, as defined by N.J.S.A. 9:6-8.21(c)(4), when they left them alone, without any prior arrangement for supervision, at the doorstep of the maternal grandmother, T.G. (Tina). Defendants appeal from the order. After reviewing the record in light of the contentions advanced on appeal and the applicable legal standards, we affirm.
To maintain confidentiality, we use pseudonyms for those involved. Also, our use of first names is for convenience, and we mean no disrespect.
As R.H. and T.H. are not mentioned hereafter, we chose not to give them pseudonyms.
R.H. was actually a few days short of turning four at the time of the incident.
A permanency hearing was held on September 11, 2012, wherein the court approved the New Jersey Division of Child Protection and Permanency's (The Division) plan of termination of parental rights. On appeal, Ray also contests the permanency plan approved by the trial court arguing that it failed to address the best interests of the children. However, on February 6, 2014, after defendants filed their notices of appeal, they entered into an identified surrender of their parental rights to all three children to allow Tina to adopt the children. Therefore, this issue is moot.
I
At a fact-finding hearing conducted over several days on March 13, May 31, and July 3, 2013, the Division presented the testimony of Tina, the current care-giver, its investigator, Natasha Freeman, and permanency worker, Nicole Vinson. Defendants chose not to testify, and were not present for the last two hearing dates.
The Division first became involved with defendants and their three minor children in June 2012, when Jane reached out to the Division seeking assistance in obtaining housing. In response, the Division assisted the family by placing them in a hotel and attempted to obtain other social services for them. Defendants were also receiving assistance from Tina and other relatives.
Vinson, who monitored the family throughout the summer, testified that during the initial contact there were no safety concerns for the family as the children appeared to be clean, healthy, fed, well cared for and dressed. By the end of September 2012, however, defendants had exhausted their hotel funding. Defendants left the hotel without reaching out to Vinson or the Division, although Vinson had provided her contact information to defendants and told them that the Division could help them with a deposit for future housing.
According to Tina, at around 10:30 a.m., on October 2 or 3, 2012, she thought she heard a vehicle delivering shoes that she had ordered, and when she looked out the window she saw her grandchildren on her doorstep. The baby was in a car seat, and the oldest child, Carla, was crying. Tina did not expect the children to be there, and was surprised that Jane did not contact her before dropping off the children. Carla told Tina that her mother put them on the doorstep, pushed the doorbell and left, while instructing them to stay there. According to Tina, defendants were aware that Tina usually worked from home on that day.
While she was uncertain as to the date, she testified that the incident happened on a Monday or a Tuesday because those were the days she worked from home. October 2, 2012 was a Tuesday, and the date the Division indicates the incident was reported by Tina.
Before taking the children inside, Tina looked for defendants, but did not see them or their car in the "open parking lot in front of her home." Yet, she did acknowledge that the parking lot was "a huge area to try to survey from a doorway," and defendants could have been "a little further over or down" in the lot. On cross examination, Tina also indicated it was "possible" that she did not see defendants as they watched her doorstep. Although it had been raining earlier, and the children were not properly dressed for the cold and damp weather that morning, they were healthy.
After bringing the children into her home, Tina unsuccessfully tried to reach Jane by telephone. At some point that day, Tina called the Division, reporting that the children were left on her doorstep without notice by defendants. Tina further testified that she did not hear from Jane or Ray for several weeks later.
Freeman testified regarding the investigation she conducted, which included speaking with Tina on October 3, 2012, and defendants, separately, on October 11, 2012. She stated:
[Jane] mentioned that [she and Ray] could no longer . . . stay in the hotel or stay where they were staying and the only option she had was to drop the children off to her mother. Jane indicated that she had prior conversations with her mother about possibly taking the children but there wasn't anything set in stone about grandma taking care of the kids.
[Jane] mentioned that . . . when they went to drop the children off, she noticed
that mom was getting her water delivery and knew that if mom was getting a water delivery that she was possibly home. So, as the water was being delivered in the back, mom and dad dropped the kids off in the front with their belongings.Moreover, Jane told Freeman that neither she nor Ray left the vicinity of the area until they observed Tina come out of her house to get the children. Freeman further testified that Jane claimed that she had not contacted her mother after dropping the children off at her doorstep because she didn't have minutes on her phone and no phone charger, and because she and Ray had been sleeping in their car for a week until Ray's family took them in. Ray's statement to Freeman confirmed Jane's version of the events.
As a result of the interviews with Jane and Ray, Freeman concluded that they left the children with Tina because they were homeless and felt Tina was the only appropriate caregiver for the children. However, Freeman determined that the children were put at risk when defendants dropped them off at Tina's home, without notifying Tina or confirming that Tina was home, near a parking lot where they could have been hit by a passing car. Freeman thus substantiated the allegation of neglect for inadequate shelter. Eventually, the children were placed into foster care with Tina, and have remained with her since.
After holding multiple case management review hearings, the court held a permanency plan hearing on September 11, 2013. At this hearing, the Division recommended that defendants' parental rights be terminated followed by Tina's adoption of the children. The resulting permanency order approved the Division's permanency plan indicating that it was not safe to return the children to the parents as "[b]oth parents have minimally engaged in services, are not consistent with visitation with the children and are without stable housing or employment. The children have been in Division custody and in physical custody of [Tina] for the past year."
On December 17, 2013, the judge issued an oral decision on the fact-finding hearing, finding that defendants neglected their children pursuant to N.J.S.A. 9:6-8.21(c)(4). The judge stated:
Having considered the testimony in this matter and having evaluated the credibility of the witnesses, as well as consider the evidence, the [c]ourt finds that these children were neglected by their parents as contemplated by N.J.S.A. 9:6-8.21[(c)(4)]. This matter is not akin to DYFS v. T.B., 207 N.J. 290 (2011).
In T.B., the grandmother resided in the same home as the defendant and the child. There was a customary schedule in place for the grandmother watching the child. That isolated event that occurred there is not akin to these event[s] here.
Here, the defendants had options. Although the grandmother was responsible and had an ordinary schedule of being home on a Monday or Tuesday, that was never confirmed in advance by the defendants that the grandmother would be home that day. Similarly, leaving three vulnerable children ages five, four and one[,] on a doorstep in a parking lot so big that when the grandmother looked around she could not locate her daughter or son-in-law in a car that she knew to be theirs, leaves the children exposed to imminent risk of harm at that time.
The judge entered the order under review, and these appeals followed.
II
Defendants argue that the finding of abuse and neglect was not based upon adequate, substantial, credible evidence. They maintain that the Division did not prove they left their children on their grandmother's doorstep without knowing if she was home. Defendants further contend that the court erred in finding that the children were at an imminent risk of harm at their grandmother's doorstep from any vehicular traffic traveling through a nearby parking lot. Ray also argues that while the measure taken to secure care for the children was "unorthodox," the children were left with their grandmother who would provide them with adequate shelter and care. Consequently, defendants contend that there was insufficient evidence of abuse and neglect; at worst, their conduct was negligent, not grossly negligence or reckless, which is required to establish abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4).
Additionally, Ray maintains that he did not neglect his children by failing to provide housing. He relies on New Jersey Division of Child Protection & Permanency v. L.W., 435 N.J. Super. 189, 196-97 (App. Div. 2014), to argue that homelessness and poverty are not adequate grounds for assuming a child is harmed because of inadequate shelter. However, since the trial judge did not find abuse or neglect based upon a lack of housing, we will not address this argument.
The Division and Law Guardian both counter by arguing that the trial court's finding of neglect was supported by testimony revealing that defendants had not exercised the minimum degree of care to provide supervision for the children when they left them alone on the front doorstep of their grandmother's home, next to a parking lot, without any agreement with Tina to care for her grandchildren. In addition, the Law Guardian challenges the credibility of the defendants' version of events arguing that their story was contrived in an effort to mitigate their neglect.
We begin with a review of the applicable legal principles that guide our analysis. Appellate courts "have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010) (citation omitted). "[A]ppellate courts 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
"There is an exception to th[e] general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). And, when the issue presented turns on a legal conclusion derived from the Family Part's fact-finding, "we are not required to defer." N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 542-43 (App. Div. 2011) (citation omitted). Such is the case here, where the defendants contend that the facts do not warrant the trial judge's finding of abuse and neglect.
"Abuse and neglect actions are controlled by the standards set forth in Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (citations omitted). In pertinent part, Title Nine defines an "'abused' or 'neglected child'" as one under the age of 18 whose
physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]At a fact-finding hearing, the Division is required to prove by a preponderance of the evidence that defendant abused the children within this statutory definition. A.R., supra, 419 N.J. Super. at 543.
[N.J.S.A. 9:6-8.21(c)(4)(b).]
Despite the statute's failure to clarify the reach of the phrase "minimum degree of care," our Supreme Court in G.S. v. Department of Human Services, 157 N.J. 161 (1999), ascertained it means "grossly or wantonly negligent, but not necessarily intentional" conduct. Id. at 178 (citation omitted). The Court determined that the conduct of a caregiver who incorrectly administered a prescription medication to a child under her care, without attempting to verify the correct dosage by contacting the child's mother, doctor, or pharmacist, fell within the "willful or wanton" standard and made her liable for child neglect under N.J.S.A. 9:6-8.21(c)(4)(b). Id. at 182-83.
However, "every failure to perform a cautionary act is not abuse or neglect." T.B., supra, 207 N.J. at 306. "When the failure to perform a cautionary act is merely negligent, it does not trigger . . . [the] statute." Id. at 306-07. In assessing whether a minimum degree of care has been exercised, focusing on the parent's level of culpability
is in synchronicity with the Legislature's expressed purpose to safeguard children. Indeed, where a parent or guardian acts in a grossly negligent or reckless manner, that deviation from the standard of care may support an inference that the child is subject to future danger. To the contrary, where a parent is merely negligent there is no warrant to infer that the child will be at future risk."[W]hether a particular event is to be classified as merely negligent, grossly negligent, or reckless can be [] difficult" because these cases are fact-sensitive. Id. at 309.
[Id. at 307.]
With these principles as a backdrop, we will not disturb the trial judge's order. We are satisfied that the defendants' conduct in leaving their children at their grandmother's doorstep constitutes neglect as set forth in N.J.S.A. 9:6-8.21(c)(4)(b). Defendants' behavior in leaving their young children at the doorstep of their grandmother's house, without any notification or confirmation that she was home, is not an exercise of minimal care, but is grossly negligent or reckless. Thus, we are not persuaded by defendants' argument that they left their children in a safe and controlled setting.
There was no confirmation that the grandmother was home, and if she was, whether she would answer the doorbell, or how long it would take her to do so. For reasons that are not explained from the record, Jane, with Ray's complicity, did not remain on the doorstep with their children, but abandoned them after ringing the doorbell and fleeing, with the hope that Tina would be there to open the door and take them in. Given the children's respective ages at the time, five, four, and one, it was an imminent risk that they would leave the doorstep out of fear, or impatience, while waiting for their grandmother to let them in. In doing so, they could have wandered into the parking lot facing the danger of vehicular traffic. The fact that none of the children were harmed or that defendants did not mean them harm is not dispositive; the children were exposed to a substantial imminent risk of harm.
In reaching this conclusion, we find that defendants' reliance upon T.B. is misplaced. There, the defendant was merely negligent in assuming that her mother was home to watch the child because she saw the mother's car in the driveway when she put her four-year-old child to bed and left the house to have dinner with a friend. T.B., supra, 207 N.J. at 297, 309. In actuality, the mother was not there, and the child woke-up and wandered outside, unharmed. Id. at 297. The Court concluded, however, that the defendant, who lived with her parents, left her child sleeping in the safe confines of a bed with good cause to believe that her mother was there to watch her based upon the established routine between the defendant and her mother. Id. 309-10. Accordingly, it was held that there was no abuse or neglect; defendant's conduct was clearly negligent but did not rise to the level of gross negligence or recklessness that would constitute a failure to "exercise a minimum degree of care." Id. at 310.
In contrast, here, while defendants expected the children's grandmother to come to the door, they knowingly exposed them to significant danger by leaving them unattended at the doorstep, in front of a parking lot. Thus, defendants' conduct constitutes gross negligence or reckless disregard of a dangerous situation, and does not warrant the same result afforded to the defendant in T.B.
We similarly find no merit with defendants' reliance upon New Jersey Department of Youth & Family Services v. J.L., 410 N.J. Super. 159 (App. Div. 2009), to argue that, like the defendant there, they were merely negligent and not reckless. In J.L. the mother of a three-year-old and five-year-old allowed the children to walk unattended from the outdoor play area of their condominium complex to their home, where there was no adult present. Id. at 161. She watched the children as they walked alone through the recreational areas and into the condominium, and stayed in the play area waiting for them to return. Ibid. Unable to open the door to go back to the play area, the children called 911. Ibid. The children were crying and scared, but both were fine. Id. at 162. We concluded that the standard is not whether some potential for harm exists, but that a parent fails to exercise a minimum degree of care when she is "'aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to the child.'" Id. at 167-68 (quoting G.S., supra, 157 N.J. at 181 (1999)).
As noted, defendants in our case knowingly left their three young children on the doorstep, next to a parking lot, while not knowing if the grandmother was home to let them in the house. Even accepting defendants' statements to the Division that they could see the children from where they were parked, the inherent risk of serious injury to the children was apparent. Thus, we conclude that defendants' conduct was grossly negligent or reckless and triggers a finding of abuse and neglect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION